COURT FILE NO.: CV-20-642431
DATE: 20220830
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: EPRF Holdings Limited
Plaintiff/Defendant to the Counterclaim
AND:
Fergus Bloor Inc., Storekey Holdings Inc. and Cushman & Wakefield ULC
Defendants/Plaintiffs by Counterclaim
BEFORE: Pollak J.
COUNSEL: Alan B. Dryer, for the Plaintiff/Defendant by Counterclaim
Stanley Razenberg, for the Defendants/Plaintiffs by Counterlcaim Fergus Bloor & Storekey Holdings
HEARD: February 16, 2022
ENDORSEMENT draft 1 mar 10
[1] In an action commenced as a result of a failed real estate transaction for the sale of a commercial building, each party moves for summary judgment. The main issue is entitlement to the deposit of $350,000.
[2] In this Action, The Plaintiff/Defendant by Counterclaim, EPRF Holdings Limited (“EPRF”) is the owner of a two-story commercial building (the “Property”).
[3] One of the Defendants/Plaintiffs by Counterclaim, Fergus Bloor Inc. (“Fergus”) is an Ontario corporation which buys, owns, operates, sells and develops commercial real estate.
[4] The other Defendant/Plaintiff by Counterclaim, Storekey Holdings Inc. (“Storekey”), (also referred to as “Buyer”), after an assignment of the Agreement of Purchase and Sale (“APS”) is a corporation related to Fergus through common ownership and control.
[5] The remaining Defendant/Plaintiff by Counterclaim, Cushman & Wakefield ULC, (“Cushman”) is the registered real estate brokerage that represented Fergus and/or Storekey with respect to the APS of the Property. It holds the deposit in its trust account.
[6] The APS dated October 18, 2019, between EPRF as Seller and Fergus as Buyer (until the assignment to Storekey) was for a purchase price was $7,000,000.00. The deposit of $350,000.00, was paid to Cushman in trust.
[7] The Buyer found out that two work permits issued in 2011 concerning the Property, were outstanding when the APS was executed.
[8] Within the appropriate timelines set out in the APS, the Buyer, requisitioned the removal/closure of these work permits. Although the seller advised that the work permits had been removed, one work permit remained outstanding on March 30, 2022. The Buyer could not get title insurance to provide coverage for this work permit.
[9] The Storekey Buyer claims it terminated the APS in accordance with its terms because of the seller’s inability to deliver clear title free of any cloud in title and because of its inability to obtain title insurance.
[10] In this Action, the Buyer claims the return of the $350,000 deposit, and a dismissal of the Action against it.
[11] EPRF also claims it is entitled to retain the deposit funds and $100,000 in punitive damages.
[12] EPRF’s claim for punitive damages, alleges that Fergus assigned the APS to Storekey in bad faith to divert liability to a ‘shell corporation’. Fergus and Storekey deny these allegations claiming that the only reason the transaction did not close is because of the Seller’s inability to have the outstanding Work Permit removed, which was important to the Buyer.
[13] EPRF alleges that Fergus’ true motives for its “last minute assignment” of the APS to Storekey, were to avoid the financial consequences of the decline in the fair market value of the Property between the time it entered into the APS and Closing. This, it is submitted, is a proper basis for an award of punitive damages.
[14] EPRF relies on the fact that on the day before the closing on March 31, 2020, at 3:10 pm, Fergus’ litigation lawyer advised in correspondence that “Fergus remained willing to close in the future but that the parties should postpone Closing while those issues resolve” and that Fergus “cannot close in the middle of a crisis for reasons beyond its control.” After the correspodence on March 31, 2020, Fergus’ real estate lawyer, delivered to EPRF counsel, a copy of an Assignment of the APS from Fergus to Storekey. EPRF takes the position that Fergus had repudiated the APS before it notified EPRF that it assigned the APS to Storekey. On that basis, the assignment is invalid as Fergus could not have assigned a repudiated APS.
[15] It is submitted that the timing and positions taken by Fergus and Storekey in the assignment of the APS were made in bad faith. EPRF had refused to extend the time of closing, as requested by Fergus, unless certain terms which were not acceptable to Fergus were agreed to. It is argued that the Assignment of the APS at the end of the business day before the date of closing to a shell company was strategically motivated, was done in bad faith and ought to be found to be invalid. It is respectfully submitted that Fergus used the assignment clause to deliberately (in bad faith) shield itself from liability by assigning its obligations to a known impecunious shell company – Storekey.
[16] Jurisprudence has established that if a transaction does not close because of a default by the purchaser, the vendor is entitled to forfeiture of the deposit. It has been held that the use of the word “deposit” in a contract for the purchase of real estate implies that the payment is intended for forfeiture upon the purchaser’s breach.
[17] The deposit was not disproportionate to the purchase price.
[18] Fergus argues that pursuant to the APS it is entitled it to clear title, free of any cloud in title. The relevant provision of the APS provides:
- TITLE SEARCH: Buyer shall be allowed until 6:00 p.m. on the 17th day of March, 2020, (Requisition Date) to examine the title to the property at his own expense and until the earlier of: (i) thirty days from the later of the Requisition Date or the date on which the conditions in this Agreement are fulfilled or otherwise waived or; (ii) five days prior to completion, to satisfy himself that there are no outstanding work orders or deficiency notices affecting the Property, and that its present use (................................................................) may be lawfully continued. If within that time any valid objection to title or to any outstanding work order or deficiency notice, or to the fact that the said present use may not lawfully be continued, is made in writing to the Seller and which Seller is unable or unwilling to remove, remedy or satisfy or obtain insurance in favour of the Buyer and any mortgagee, (with all related costs at the expense of the Seller), and which Buyer will not waive, this Agreement notwithstanding any intermediate acts or negotiations in respect of such objections, shall be at an end and all monies paid shall be returned without interest or deduction and Seller, Listing Brokerage and Co-operating Brokerage shall not be liable for any costs or damages. Save as to any valid objection so made by such day and except for any objection going to
the root of the title, Buyer shall be conclusively deemed to have accepted Seller’s title to the Property. Seller hereby consents to the municipality or other governmental agencies releasing to Buyer details of all outstanding work orders or deficiency notices affecting the Property, and Seller agrees to execute and deliver such further authorizations in this regard as Buyer may reasonably require. (emphasis added).
[19] Fergus formally requested that in accordance with the APS, the outstanding Work Permits be removed and cleared from title prior to closing. Fergus/Storekey was unable to obtain insurance to insure over one outstanding Work Permit.
[20] The Buyers seek to characterize the issue in this litigation as whether the outstanding Work Permit(s) constituted a ‘valid objection to title’ or an ‘outstanding work order’ or ‘deficiency notice’; if they/it did, then the APS expressly permitted the Buyers to treat the APS as being at an end, and the Buyers are entitled to the return of the Deposit Funds. This however, is disputed by EPRF, that relies on Fergus’ anticipatory breach of the APS, which is referred to above and denies that the outstanding work permit was a valid objection to title.
[21] Fergus submits that the outstanding Work Permits did constitute a valid objection to title, outstanding work order, and/or a deficiency notice.
[22] Both parties agree that these motions for summary judgment can be decided on the basis of the written evidentiary record and can be resolved by way of summary judgment motion. I agree.
[23] As set out in Hyrniak v. Mauldin, 2014 SCC 7, 2014, S.C.C. 7, there will be no genuine issue requiring trial:
… when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[24] The Supreme Court set out the following “roadmap” for a summary judgment motion:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the
summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[25] The important facts on the relevant issues are not in dispute.
[26] The theory of EPRF’s claim is that it was clear from the letter of Fergus’s litigation lawyer on March 31, 2020, that Fergus was looking for an extension of the time to close as it was unable to arrange its finances and that Fergus repudiated the APS on March 31, 2020, by advising that it refused to close the sale transaction on that date. Counsel advised as follows:
We write in response to your letter sent yesterday. Your client’s proposals are not acceptable to the Purchaser. If anything, they suggest that your client seeks to take advantage of the current pandemic rather than comply with its good faith obligations.
Your client should be mindful of the fact that Jonathan Hyman, the Principle of Fergus Bloor is ill for reasons related to the COVID pandemic. Moreover, and equally important, our client’s previous financing arrangements were put on hold for reconsideration as a result of the COVID pandemic and its bank has suggested it will not be able to confirm financing at this time.
Finally, we understand that a building permit on title to the Property remains unresolved. The Purchaser is unable to accept any indemnity relating to permits.
My client remains willing at this time to close in the future, but it is clear that the parties should postpone closing while these issues resolve. It cannot close in the middle of a crisis for reasons beyond its control.
[27] In preparation for the April 1st, 2020 closing, on March 31st, 2020, counsel for Fergus discovered that there remained one outstanding work permit registered against the Property. Counsel was advised that the title insurer does not provide such coverage to property owners.
[28] Fergus’ counsel advised the Seller’s lawyer of the outstanding Work Permit, and that the title insurer will not provide coverage.
[29] On March 31st, 2020, the Seller’s lawyer advised that he and the Seller are ‘effecting’ the removal of the Work Permit. As of March 31st, 2020, at 8:26 pm. The evidence is that the outstanding Work Permit was still active and had not been closed.
[30] The APS allowed the Seller until March 27th, 2020, to address any title issues requisitioned by the Buyer on or before 6 pm on March 17th, 2020.
[31] On April 1st, 2020, EPRF tendered on the Buyer and Storekey, through counsel, advised that it was terminating the APS due to the outstanding Work Permit which remained registered against the Property.
[32] Each of the parties have sought summary judgment motions in this Action. EPRF seeks payment of the Deposit plus punitive damages payable by Fergus /Storekey and a dismissal of Fergus’s and Storekey’s motion for summary judgment, and of their counterclaim for the return of their deposit. The following is a chronology of the events drafted by EPRF:
Date
Description
Oct.18, 2019
Agreement of Purchase and Sale signed.
Nov.15,2019
Fergus waives buyer’s condition
Feb.21, 2020
Fergus’ real estate lawyer, Robert Pollock (“Pollock”), first email advising of open building permits 11 129871 and 10 125752 and requesting their removal prior to closing
Feb. 2020
Open Building Permit 10125752 closed.
Mar.17,2020
Fergus asks for a 45-day extension on closing due to Pandemic.
Mar.17,2020
Fergus delivers its requisition letter to EPRF. Item No. 9 in the requisition letter requests deletion of the two active permits from the City’s files on or before Closing
Mar.18,2020
EPRF’s Answer to Requisition 9 states: “I was advised March 9, 2020 ,by the Vendor that both permits have now been cleared. You may obtain confirmation of same from the City of Toronto inspector, Surinda Gupta (416-392-0680)”.
Mar.18-31, 2020
Fergus does not raise the disputed Open Building Permit
Mar.27, 2020
Fergus seeks extension of closing until August 21, 2020, due to effect of Covid 19 Pandemic
Mar.27, 2020
EPRF refuses to grant extension but offers a vendor take back mortgage (“VTB”)
Mar.30, 2020
Fergus retains litigation counsel who asks EPRF to reconsider an extension to avoid litigation.
Mar.30, 2020
EPRF responds that VTB remains available and also offers terms for extension.
Mar.31, 2020 12:40 pm
Fergus states that the Disputed Open Building Permit remained outstanding on the City of Toronto website and had not been closed, and that its lawyer did not and could not contact Gupta.
Mar.31, 2020, 1:20 pm
EPRF states that it is apparent on the face of the Disputed Open Building Permit that it is not related to the Property and that City clerk is not responsive.
Mar.31, 2020, 3:10 pm
Fergus’ litigation counsel states that Fergus remained willing to close in the future but that the parties should postpone Closing while those issues resolve and that Fergus “cannot close in the middle of a crisis for reasons beyond its control”
Mar.31, 2020
EPRF replies that EPRF’s offer of a VTB mortgage or an extension of the Closing on commercially reasonable terms remains open and advises that EPRF would tender at Closing on the following day unless one of those proposals was accepted
Mar.31, 2020, email at 5:33 pm
Fergus delivers to EPRF a copy of an Assignment of the APS from Fergus to Storekey.
Mar.31, 2020 8:26 pm
EPRF offers to provide Statutory Declaration and Undertaking and Indemnity re Disputed Open Building Permit at closing.
Apr. 1, 2020
EPRF makes a valid tender and is ready willing and able to close. The tender includes the Undertaking and Indemnity regarding the Open Building Permit containing EPRF and Solomon’s covenant and agreement to save the Buyer harmless of and from any claim, loss or damages arising from their failure to fulfil the undertaking to remove it.
Apr. 6, 2020
Disputed Open Building Permit is deleted by City.
[33] Fergus argues that pursuant to the APS, it was the obligation of the Seller to take steps to have the Work Permits removed, or to arrange for insurance over them in favor of the Buyers.
[34] This position was made clear in correspondence from Fergus’ counsel to EPRF’s counsel dated April 1, 2020 (the closing date and which has not been included in EPRF’s chronology), which advised:
“We have yet to receive conclusive evidence that the outstanding permit registered against the Property has been closed. We have no formal indication from the City of Toronto that the permit relates to another property and has been registered mistakenly. Your client has been aware of this issue for well over a month, having ample time to resolve the issue with the City and have the permit removed from the Building Department files prior to the pandemic bringing matters to a standstill. As you are aware, the permit still remains showing as active, with inspections pending, on the city of Toronto website.
In accordance with the provisions of paragraph 8 of the Agreement of Purchase and Sale, Storekey Holdings is hereby terminating the Agreement of Purchase and Sale, as the open permit constitutes a cloud on title which a buyer is not obligated to accept, pursuant to the recent Ontario case law. We direct your attention to the decisions in 1854822 Ontario Ltd. v, Estate of Manuel Martins (2013 ONSC 4310) and MacDonald v. Chicago Title Insurance Company (2015 ONCA 842). Our client is not obligated to accept your client’s indemnity with respect to the open permit, they are entitled to receive clear title on closing, which includes no outstanding permits. Our client is not entitled to title insurance protection for this issue, so that is not a consideration either.
We ask that your client consent in writing to the return of the $350,000 and any accrued interest to Storekey Holdings.”
[35] The APS provides as follows:
If within that time [March 27th, 2020, being 5 days prior to the scheduled closing of April 1st, 2020] any valid objection to title or to any outstanding work order or deficiency notice, or to the fact that the said present use may not lawfully be continued, is made in writing to the Seller and which Seller is unable or unwilling to remove, remedy or satisfy or obtain insurance in favour of the Buyer and any mortgagee, (with all related costs at the expense of the Seller), and which Buyer will not waive, this Agreement notwithstanding any intermediate acts or negotiations in respect of such objections, shall be at an end and all monies paid shall be returned without interest or deduction and Seller, Listing Brokerage and Co-operating Brokerage shall not be liable for any costs or damages.
[36] Fergus delivered two proper requisitions within the timeline for doing so. According to the APS, EPRF had until March 27th, 2020, to have the Work Permit closed, or to insure over them for the benefit of the Buyer. As it did neither, it is submitted that the Buyer was entitled to treat the APS as being at an end.
[37] EPRF puts the blame on Fergus and its lawyers arguing that they could have and should have completed their due diligence by contacting the City of Toronto in a timely manner. Between March 18, 2020 and March 31 of 2020, no attempt was made by Fergus to contact the City of Toronto to obtain confirmation as to the validity and accuracy of the registration of a building permit on title to the Property; The Open Building Permit was not raised by Fergus as an ongoing issue in its communication with EPRF or its lawyer. No response was made by Fergus to EPRF’s answer to that requisition, including as to its sufficiency. Further, EPRF emphasizes that Fergus/Storekey did not provide any evidence to contradict the evidence that the Disputed Open Building Permit was erroneously registered in the City’s records against the Property and was related to a lotto booth in the concourse level of the subway across the street. The uncontradicted hearsay evidence is that the City acknowledged that the registration was in error and had to be removed. It remained registered at Closing due to administrative delay by the City in deleting the erroneous registration from its records for the Property.
[38] The evidence of Fergus is that the existence of the outstanding Work Permit was a legitimate concern to the Buyer, and it was important to the Buyer to have it removed.
[39] EPRF submits that the Open Building Permit was not a cloud on title which the Buyer was not obligated to accept. It submits that:
a) “It related to the subway station across the street from the Property
b) It was incorrectly filed against the Property;
c) It did not affect the Property in any way, and was to be deleted;
d) It was not a defect in title to the Property to any extent, and in any event did not go to the root of title to the Property;
e) It was not material;
f) It posed no risk of litigation;
g) The City had stated that it would be deleted; and
h) It was utilized as an excuse to attempt to justify a buyer’s repudiation which was capricious, arbitrary and contrived to avoid proper, valid and enforceable contractual obligations.”
[40] I accept the evidence that the existence of the outstanding Work Permit was a legitimate concern to the Buyer, and it was important to the Buyer to have it removed. The affidavit of Wendy Sokoloff sworn September 30th, 2021 states that:
a. There was conflicting information from the Seller concerning the nature and status of the outstanding Work Permit(s). The Buyers were told in writing that both Work Permits had been removed on March 9th, 2020, but in fact a search conducted on March 31st, 2020, revealed one of the Work Permits had not been removed and remained active;
b. In a Declaration sworn on March 31st, 2020, by Mr. Solomon on behalf of the Seller, states that he was told by a representative of the City of Toronto on or about February 21st, 2020, that both work permits would be removed that day. Notwithstanding this information, over a month later, as at March 31st, 2020, one of the Work Permits remained active. This signaled to the Buyer that there may be a problem with the removal of the second work permit because one was removed, but the second remained even at 8:30 pm the day before the scheduled closing;
c. These permits had been open since 2011. The Buyer did not want to be in a position of having an open work permit if and when it chose to sell the Property in the future and/or lease the property (which it had plans to do);
d. The Buyers knew that without the City voluntarily removing the Work Permit (something the City had not done despite a request from the Seller on February 21st, 2020), the Buyers would need to bring an Application before the Court to seek its removal;
e. Given that neither the Seller nor its lawyer were able to easily remove the outstanding Work Permit, this undermined the Seller’s position that removal of the Work Permit would be relatively simple;
f. The Buyer did not wish to be involved in any litigation these issues.
[41] EPRF’s position is that at Closing on April 1, 2020, Fergus or Storekey as Buyer failed to complete the purchase of the Property as required under the terms of the APS in the face of the proper and valid tender by EPRF. As a result, Fergus or Storekey became liable to EPRF for all of the consequences of such failure, including forfeiture of the Deposit.
[42] I agree that based on the evidence of the Buyer that the Buyer was not obligated to assume the risks and concerns regarding the outstanding work permits. Fergus relies on the reasoning from Airport Business Park v. Huszti Holdings, 2021 ONSC 4276, which dealt with an easement:
…The ‘good and marketable title’ argument is the very essence of this case—the very point of Smith v. Tellier, and the core reason the appellant was correct below and prevails in this Court. This was an old Easement and the purpose for it had disappeared because of technological change (it was granted out of anticipated requirements of Windsor Airport in the 1960’s which no longer existed in the 21st century). However, the Easement was still on title. Purchaser agreed to pay a price for the land without the Easement. It agreed to pay a reduced price if risk remained that the Easement would continue to exist on the first anniversary of the closing. By one year after closing, the risk had been reduced but not eliminated. On the bargain between the parties, the appellant was entitled to the reduction in the purchase price. (emphasis added).
[43] EPRF relies on the decision in Thomas v. Carreno, 2013 ONSC 1495, wherein contractual language almost identical to the language contained within the APS, on the issue of whether an open work permit constituted a valid objection to title, the court stated:
The Respondents submit that an open building permit does not go to the root of title, that it is just a minor defect and that they are able to convey substantially what the purchaser contracted for.
From the evidence it would appear that the building permit related to a fairly substantial renovation and, thus, the potential risk and exposure to the Applicant was significant. The City could have imposed extremely onerous work orders which certainly would affect the Applicant’s use and enjoyment of the property. The Applicant would be subject to the possibility of facing significant remedial construction and possible litigation.
In the face of an open permit, the property remains subject to the possibility of a work order. In this way, the Applicant submits that an open permit is a precursor to a work order and is therefore a cloud on title.
Whether an open permit can be legally characterized as going to the root of title, in the circumstances of this case in accordance with paragraph 10 of the Agreement and the expert evidence filed, title insurance is an acceptable solution to an outstanding issues such as an open building permit or even a work order or a deficiency notice. Both Zarowsky and Galea assumed that could be a solution.
The cases of Royt v. Goldenberg, [2006] O.J. No. 3489 (Ont. S.C.J.) and Remlinger v. Marcoux (2009)(Court File No. CV-09-00383440-0000)(Ont. SCJ), unreported decision) suggest that a requisition regarding matters such as an open building permit can be satisfactorily answered by a commitment to provide title insurance as contemplated by the Agreement of Purchase and Sale.
On the basis of these decisions, the question then becomes whether the vendors failed to obtain title insurance as required by the Agreement.
[44] The court held that title insurance, which was not available in this case, was the proper solution to the dispute between the parties. It does, therefore, not provide assistance to this court. I agree with the submissions of the Buyer that it was the obligation of EPRF to have the work permit removed or cleared. EPRF could have delayed the closing for a few days to do so. The Buyer was not obliged to accept the statutory declaration and the undertakings offered by EPRF.
[45] I accept the evidence of the Buyer with respect to its concerns about the possible problems that could arise because of the open work permit. These concerns and possible problems should be bourn by EPRF which is receiving consideration for the sale of the property. I do not agree that the evidence supports a finding of bad faith by Fergus. Fergus had the right to the assignment of the APS to Storekey Holdings.
[46] The right to assign the APS was part of the initial offer made from Fergus to the Seller. EPRF counter offered with a higher purchase price and a higher deposit amount in exchange for Fergus’ right to assign.
[47] I have accepted the evidence that Fergus’ intention to proceed with the purchase of the Property, and it is for this reason that the assignment was made.
[48] Its practice is to assign the agreement to a corporation set up specifically for the purpose of owning and managing that specific building. The evidence is that Fergus intended to self-finance and close on April 1st, 2020.
[49] This evidence was not challenged on cross-examination. I accept that the evidence establishes that until the evening of March 31st, 2020, when it learned that the Work Permit had not been removed and that insurance was not available for the benefit of the Buyer, the Buyer intended to proceed with the closing.
[50] I do not accept EPRF’s position that counsel advised that Fergus would not complete the purchase under the APS at Closing, constituted an anticipatory breach and repudiation of the APS by Fergus.
[51] After this correspondence, on March 31, 2020, at 8:26 p.m., EPRF counsel sent a further email advising that EPRF was effecting its removal, and that, in any event, it was settled law that, in all but the most egregious circumstances, an open permit was not a cloud on title, and would in no circumstances give a purchaser the right to terminate a purchase transaction. He also advised that EPRF would in good faith be providing both a Statutory Declaration and an Undertaking and Indemnity at Closing.
[52] On April 1, 2020, at 12:08 p.m., EPRF completed a valid tender.
[53] By email dated April 1, 2020, at 4:38 pm, counsel advised that Storekey was terminating the APS on the ground that the Open Building Permit constituted a cloud on title which a buyer was not obligated to accept under Ontario law.
[54] To conclude, I find that the Buyer had the right to terminate the agreement for the reasons I have set out above. It also has the right to a return of the deposit and the Defendant Cushman is ordered to pay the amount of the deposit with interest accrued to Storekey.
Costs
[55] As the Defendant Storekey Holdings has been the successful party on this motion, they are entitled to costs. If the parties are unable to agree on costs, the Defendant, Storekey Holdings, may make submissions of no more than two pages, double spaced sent the Plaintiff, uploaded to Caselines with a copy sent to my assistant Roxanne Johnson at Roxanne.johnson@ontario.ca by 12 p.m. on September 14, 2022 The Plaintiff, EPRF, may make submissions of no more than two pages, double spaced sent to the Defendant, uploaded to caselines with a copy sent to my assistant by 12 p.m. on September 28, 2022. No reply submissions will be accepted.
Pollak J.
Date: August 30, 2022